United States District Court, E.D. Louisiana
ROBERT TAYLOR, JR., ET AL.
DENKA PERFORMANCE ELASTOMER LLC, ET AL.
ORDER AND REASONS
I. C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court are two Rule 12 motions: (1) Denka Performance
Elastomer LLC's motion to dismiss; and (2) E.I. du Pont
de Nemours and Company's motion to dismiss. For the
reasons that follow, DuPont's motion is GRANTED, and
Denka's motion is GRANTED without prejudice to the
plaintiffs' opportunity to amend their deficient nuisance
allegations in their complaint.
environmental tort litigation arises from the production of
neoprene, which allegedly exposes those living in the
vicinity of the manufacturing plant to concentrated levels of
chloroprene well above the upper limit of acceptable risk,
resulting in a risk of cancer more than 800 times the
national average. Thirteen people living in what
environmentalists and the media have dubbed “Cancer
Alley” filed this lawsuit seeking injunctive relief in
the form of abatement of chloroprene releases from their
industrial neighbor, the Pontchartrain Works facility, the
only facility in the United States still manufacturing a
synthetic rubber called neoprene, which is made from
chloroprene, which the Environmental Protection Agency has
classified as a “likely human carcinogen.”
facts are drawn from the allegations advanced in the second
amended complaint. E.I. Dupont de Nemours & Co. invented
neoprene in 1931. Neoprene is a synthetic rubber used in
chemical and weather resistant products such as wet suits and
orthopedic braces. It is also used as a base resin in
adhesives, electrical insulation, and coatings. In 1969,
DuPont built a neoprene manufacturing unit at its
Pontchartrain Works facility in LaPlace, Louisiana.
Chloroprene, a component of neoprene, is manufactured at the
site. During the manufacturing process, chloroprene is
emitted into the air and discharged into the water.
2008, DuPont had consolidated its neoprene production to its
Pontchartrain Works facility (PWF), which is now the only
facility manufacturing neoprene in the United States.
Effective November 1, 2015, DuPont sold the PWF to Denka
Performance Elastomer LLC (DPE or Denka), but DuPont retained
ownership of the land underlying the facility.
alleged that as early as 1988 DuPont knew “of the
deleterious effects of exposure to chloroprene emissions,
” and that DPE had the same knowledge of such harms
when it bought the Pontchartrain Works facility. It is
alleged that both DuPont and DPE concealed from the
Environmental Protection Agency (EPA) and the Louisiana
Department of Environmental Quality (LDEQ) their knowledge
regarding chloroprene's harmful effects. In 2010, the EPA
classified chloroprene as a “likely human
carcinogen.” In its Integrated Risk Information System
assessment of chloroprene, the EPA explained that chloroprene
was “likely to be carcinogenic to humans' [sic]
through a mutagenic mode of action and that the primary
exposure route of concern is the inhalation pathway.”
Additionally, the EPA has noted that
[s]ymptoms reported from acute human exposure to high
concentrations of chloroprene include giddiness, headache,
irritability, dizziness, insomnia, fatigue, respiratory
irritation, cardiac palpitations, chest pains, nausea,
gastrointestinal disorders, dermatitis, temporary hair loss,
conjunctivitis, and corneal necrosis.... Acute exposure may
[also]: damage the liver, kidneys, and lungs; affect the
circulatory system and immune system; depress the central
nervous system (CNS); irritate the skin and mucous membranes;
and cause...respiratory difficulties in humans.
December 2015, the EPA again classified chloroprene as a
likely human carcinogen when it released a screening-level
National Air Toxics Assessment (NATA), which analyzes
exposure levels to toxins, estimates the expected number of
incidences of cancer per one million people based on exposure
to air toxins from industry, and also announces an upper
limit of “acceptable risk”
threshold.The NATA acceptable risk exposure threshold
for chloroprene was established as 0.2 µg/m³; that
is, chloroprene emissions must stay below .2 micrograms per
cubic meter in order to comply with the limit of
acceptable risk threshold (which is a risk of 100 in one
knowledge of this upper limit of the acceptable risk
threshold for exposure to chloroprene concentrations, it is
alleged that DPE continues to emit chloroprene at hundreds of
times the 0.2 µg/m³ threshold. It is alleged that,
historically, the Pontchartrain Works facility emitted
chloroprene air emissions well in excess of the 0.2
µg/m³ threshold. Since May 25, 2016, the EPA has
collected 24-hour air samples every three days from six
locations around the Pontchartrain Works facility; air
samples at all six locations are frequently up to 700 times
the 0.2 µg/m³ threshold, or more. DPE's own
sampling numbers at five locations surrounding the facility
indicate that average chloroprene emissions range from 20.4
to 33.25 times the 0.2 µg/m³ threshold.
EPA's National Enforcement Investigation Center (NEIC)
conducted a Clean Air Act (CAA) inspection of the
Pontchartrain Works facility in June 2016. A copy of the
redacted inspection report from the EPA's CAA inspection
was publicized on April 3, 2017. The NEIC inspection report
revealed various areas of non-compliance by both DuPont and
DPE in their operation of the facility, including failure to
adhere to monitoring, recordkeeping, and reporting
requirements for the chloroprene vent condenser; failure to
replace leaking valves; failure to include appropriate
emissions factors in air permit application materials; and
failure to institute appropriate emissions controls for the
chloroprene Group I storage tank.
January 6, 2017, DPE entered into an Administrative Order on
Consent (AOC) with LDEQ with a target to reduce its
chloroprene emissions by 85 percent. Even if this reduction
is achieved, the plaintiffs allege that DPE's emission
levels will nevertheless exceed the 0.2 µg/m³
threshold. In any event, it is alleged that DPE has failed to
meet all interim requirements for emission controls and
emissions concentrations that it agreed to in the AOC.
to the EPA, “[t]he top 6 census tracts with the highest
NATA-estimated cancer risks nationally are in Louisiana due
to Denka (formerly DuPont) chloroprene emissions.” The
NATA assessment reports that the cancer risk for the census
tracts in the vicinity of the Pontchartrain Works facility is
3.365 per million, while the cancer risk from chloroprene
exposure in those census tracts ranges from 158.515 to 768.46
per million, all well above the acceptable risk level
recommended by the EPA.
of reducing chloroprene emissions in compliance with the
EPA's 0.2 µg/m³ threshold, on June 26, 2017,
DPE representatives submitted a Request for Correction to the
EPA in which they sought to increase the 0.2 µg/m³
threshold in order “to prevent further significant
damage to” their business. It is alleged the DPE
representatives have lobbied members of the U.S. Congress to
undermine the EPA and support reduction or removal of
emissions restrictions at the facility.
Taylor, Jr., individually and on behalf of his minor
daughter, N.T., Kershell Bailey, Shondrell P. Campbell,
Gloria Dumas, Janell Emery, George Handy, Annette Houston,
Rogers Jackson, Michael Perkins, Allen Schnyder, Jr., Larry
Sorapuru, Sr., Kellie Tabb, and Robert Taylor, III are all
individuals living near PWF in Reserve, Edgard, and LaPlace,
Louisiana. On June 29, 2017, these individuals, individually
and as representatives of a putative class of similarly
situated plaintiffs, sued Denka Performance Elastomer LLC and
E.I. DuPont De Nemours and Company in the Louisiana 40th
Judicial District Court in St. John the Baptist Parish. The
plaintiffs allege that DuPont has emitted chloroprene for
many years at levels resulting in concentrations many times
the upper limit of acceptable risk, and DPE continues to do
so. The plaintiffs advance Louisiana state law causes of
action for nuisance, trespass, negligence, and strict
liability; they seek injunctive relief in the form of
abatement of chloroprene releases such that the concentration
of chloroprene does not exceed the 0.2 µg/m³
threshold; damages for deprivation of enjoyment of occupancy
of property; punitive damages; and additional damages
including medical monitoring to the extent personal injury
claims become mature.
defendants jointly removed the lawsuit, invoking this
Court's diversity jurisdiction. The Court denied the
plaintiffs' motion to remand. The plaintiffs filed an
untimely request to extend the deadline to seek class
certification, which the defendants opposed. The Court denied
the plaintiffs' request to extend the deadline to seek
class certification, and later denied the plaintiffs'
motion to reconsider its ruling. See Order and
Reasons dtd. 2/22/18 (denying plaintiffs' motion to
reconsider, denying the plaintiffs' untimely motion for
class certification, and granting DuPont's motion to
dismiss class allegations). The defendants now move to
dismiss the plaintiffs' claims for lack of subject matter
jurisdiction or failure to state a claim.
subject matter jurisdiction of federal courts is limited.
Kokkonen v. Guardina Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). Indeed, "[i]t is to be presumed that a
cause lies outside this limited jurisdiction," the
Supreme Court has observed, "and the burden of
establishing the contrary rests upon the party asserting
jurisdiction." Id. (citations omitted). Motions
filed under Rule 12(b)(1) of the Federal Rules of Civil
Procedure allow a party to challenge the Court's subject
matter jurisdiction. Fed.R.Civ.P. 12(b)(1).
lawsuit must be dismissed if it appears that the Court lacks
subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1), (h)(3).
The burden of proof for a Rule 12(b)(1) motion to dismiss is
on the party asserting jurisdiction. King v. U.S.
Dep't of Veterans Affairs, 728 F.3d 410,
416 (5th Cir. 2013); Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001). When presented with other Rule
12 motions, jurisdictional challenges should be resolved
addition to the jurisdictional challenge, the defendants also
seek dismissal of the plaintiffs' claims for failure to
state a claim under Rule 12(b)(6). The standard of review
applicable to motions to dismiss under Rule 12(b)(1) is
similar to that applicable to motions to dismiss under Rule
12(b)(6). See Williams v. Wynne, 533 F.3d 360,
364-65 n.2 (5th Cir. 2008)(observing that the Rule 12(b)(1)
and Rule 12(b)(6) standards are similar, but noting that
applying the Rule 12(b)(1) standard permits the Court to
consider a broader range of materials in resolving the
motion). The Court may find a plausible set of facts to
support subject matter jurisdiction by considering any of the
following: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts.”
Barrera-Montenegro v. United States, 74 F.3d 657,
659 (5th Cir. 1996). In the absence of a motion by one of the
parties, the Court may also examine the basis of its
jurisdiction on its own. Crone v. Cockrell, 324 F.3d
833, 836 (5th Cir. 2003).
addition to the jurisdictional challenge, the defendants also
seek dismissal of the plaintiffs' claims for failure to
state a claim under Rule 12(b)(6). Rule 12(b)(6) of the
Federal Rules of Civil Procedure allows a party to move for
dismissal of a complaint for failure to state a claim upon
which relief can be granted. Such a motion is rarely granted
because it is viewed with disfavor. See Lowrey v. Tex. A
& M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)
(quoting Kaiser Aluminum & Chem. Sales, Inc. v.
Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir.
Rule 8(a)(2) of the Federal Rules of Civil Procedure, a
pleading must contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Ashcroft v. Iqbal, 556 U.S. 662,
678-79 (2009)(citing Fed.R.Civ.P. 8). "[T]he pleading
standard Rule 8 announces does not require 'detailed
factual allegations,' but it demands more than an
accusation." Id. at 678 (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
considering a Rule 12(b)(6) motion, the Court
“accept[s] all well-pleaded facts as true and view[s]
all facts in the light most favorable to the
plaintiff.” See Thompson v. City of Waco,
Texas, 764 F.3d 500, 502 (5th Cir. 2014) (citing Doe
ex rel. Magee v. Covington Cnty. Sch. Dist. ex rel.
Keys, 675 F.3d 849, 854 (5th Cir. 2012)(en banc)). But,
in deciding whether dismissal is warranted, the Court will
not accept conclusory allegations in the complaint as true.
Id. at 502-03 (citing Iqbal, 556 U.S. at
survive dismissal, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted). “Factual allegations must be
enough to raise a right to relief above the speculative
level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact).”
Twombly, 550 U.S. at 555 (citations and footnote
omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (“The plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.”). This is a “context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“Where a complaint pleads facts that are merely
consistent with a defendant's liability, it stops short
of the line between possibility and plausibility of
entitlement to relief.” Id. at 678 (internal
quotations omitted) (citing Twombly, 550 U.S. at
557). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief'”, thus, “requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (alteration in original) (citation omitted).
III of the Constitution limits federal courts'
jurisdiction to certain 'Cases' and
'Controversies.'" Clapper v. Amnesty
Int'l USA, 568 U.S. 398, 133 S.Ct. 1138, 1146
(2013)(“The law of Article III standing, which is built
on separation-of-powers principles, serves to prevent the
judicial process from being used to usurp the powers of the
political branches.”). “No principle is more
fundamental to the judiciary's proper role in our system
of government than the constitutional limitation of federal
court-jurisdiction to actual cases and controversies.”
Spokeo, Inc. v. Robins, 136 S.Ct. 1540, 1547
doctrines -- standing, mootness, political question, and
ripeness -- give meaning to Article III's case or
controversy requirement. A plaintiff bears the burden of
establishing standing and ripeness under Article III.
SeeDaimlerChrysler Corp. v. Cuno, 547 U.S.
332, 342 and n.3 (2006)(in a case removed from state court,
“[w]hatever the parties' previous positions on the
propriety of a federal forum, plaintiffs, as the parties
seeking to establish federal jurisdiction, must make the
showings required for standing.”); see also Miss.
State Democratic Party v. Barbour, 529 F.3d 538, 545
(5th Cir. 2008). "One element of the case-or-controversy
requirement" -- standing to sue --commands that a
litigant must have standing to invoke the power of a federal
court. See Clapper, 133 S.Ct. at 1146 (citation
omitted); Spokeo, Inc. v. Robins, 136 S.Ct. 1540,
1545 (2016)(citations omitted)(the standing doctrine